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29 Legal Issues of Econ. Integration 205 (2002)
Is the Siege of Fortress Europe Really Over - The Exhaustion of Trademarks in the EC, Competition and International Trade

handle is hein.kluwer/liei0029 and id is 227 raw text is: Legal Issues of Economic Integration 29(2): 205-218, 2002. © 2002 Kluwer Law International. Printed in the Netherlands. Is the Siege of Fortress Europe Really Over? The Exhaustion of Trademarks in the EC, Competition and International Trade European Court of Justice, 20 November 2001, Joined Cases C-414/99 to C-416/99 Zino DavidoffSA v. A & G Imports Ltd. and Levi Strauss and Co. and Others v. Tesco Scores Ltd. and Others [2000] ECR 1-8691 Luca Rubini* 'That the maxim of buying in the cheapest market, and selling in the dearest, which regulates every merchant in his individual dealings, is strictly applicable as the best rule for the trade of the whole nation.' (From the 1820 Petition of the London Merchants to Parliament.) 1. Introduction In this preliminary procedure, the Court was confronted again with the sensitive subjects of international exhaustion of trademark rights and parallel imports. The most contended issue focused on the construction of propri- etors consent to the placing of the goods on the EEA' market following which, under Article 7 of the Trademark Directive,2 the trademark right is exhausted. Can this consent be implied from silence? Can presumptions of consent be used? This note discusses the relevant findings of the Davidoff decision and suggests its implications. In the first part, the ruling (which in substance established a presumption of non-consent) is criticised as too restrictive. The suggestion is that the Court should have balanced all the interests at stake, in particular trademark protection, free trade, and the principles of legitimate expectations and of (WTO law) consistent interpretation, and substantially upheld the presumption of consent indicated by English law. A more liberal interpretation would thus have resulted. The second part of the comment Research Student (MPhil), Centre of European Law, King's College London. I am very much indebted to the comments of Professor Piet Eeckhourt. Any omission or error is attributable to the Author. 1. The European Economic Area created by the EEA Agreement. 2. Council Directive 89/194/EEC of 21 December 1988 (OJ 1989 L40, p. 1). 205 Copyright © 2007 by Kluwer Law International. All rights reserved. No claim asserted to original government works.